DIGITAL IS GREAT BUT...

Just thought that I would write about a personal anecdote of mine to warn the newbie digital photographer as well as refresh the memories of seasoned vets on what can happen in this wonderful digital age.
Four years ago I took my first digital photographs with an olympus 3030 and tetra setup, during a rebreather week put on by the Diveshop I was working for. I was asked to take some fun photos of the guests so that they could have a personal keepsake from the diving that week, I readily did so and provided the guests with CDs of the images at the end of the week.
Shortly thereafter some of my photos appeared in commercial advertisements, not only without my consent but also with photo credit given to someone else.... in fact someone in the photo. The first time I saw this I was shocked and a little upset but thought it was some sort of a miscommunique and contacted the magazines & advertisers using the photo. I thought it was a 'one-off' that would be quickly corrected.
Since that time I have seen that photo in one page advertising spreads in dozens of magazines including Immersed,UK Dive magazine, Nitrox diver, as well as being used in a 20 foot by 10 foot high advertising kiosk at the DEMA dive show,as well as thousands of cardboard pamphlets used for advertising a product, continuing to give credit to someone else ( the web administrator of the Dive shop Reg Creighton).
This individual repeatedly denied having anything to do with the image, saying someone else must have sent it in. His credibility being damaged somewhat because of the fact an additional article he provided to a local touristic publication had the clear markings " Articles and photos by Reg Creighton "; which once again had some of my work showcased.
I have spoken with various people on the subject and it seems there is no recourse for such violation(s), the fact that I do not have 'the original' shouldn't really be an issue as the person getting credit for the photo is IN the photo. The fact that I was working for the shop, I believe, shoudn't be an issue because I did not sign away my copyright for outright corporate and international advertising use, merely a personal memory keepsake for the guests.
The bottom line I suppose: enjoy the freedom to share that digital allows you, but beware there are some unscrupulous individuals out there looking to take credit for your work. <_<

I'm not a lawyer, but as a designer I have had a fair amount of dealings with usage questions under US laws.

Generally:

You have an inherent copyright until something is published. If published to retain the copyright, you must add in the "copyright 2005, Joe Blow" with it to protect you rights. This doesn't apply if you've sold usage.

You worked for the shop. Whether or not you assigned your rights away is a bit murky, because you did "work for hire". Sometimes that does assign the rights to work produced away. But that does vary.

Personally, the best thing you can do in a situation like this when you've seen something used is to contact the person and negotiate a reasonable buy-out.

I get photographers trying to bilk clients out of outrageous usage rates depending on each usage, etc. Sometimes after an assignment we paid for and want to reuse! Generally we tell them to get lost and take our own shots or find stock (and never use them again). If the shooter had been reasonable, realized that in the long term it is better to just get a reduced buy-out for the shot, then they are going to get more work.

If you are working for a commercial dive company and you are taking photos of customers and eitehr give or sell those photos to the customers there are two things to be aware of. (i learnt this working at a dive shop in cayman too)

1) the dive shop owns the photos not you (this is normal with most, some even make you sign something)
2) once sold or given to customers who are paying for services which may include you taking their photograph, it is the property of the customer unless you got them to sign a model release form and give you the rights to the image.

So pretty much you have no recourse

the main thing to do .. especially if the dive shop allows you to keep your work,is to make sure the people in the images (if you want to keep them and use them for making money) sign a model release form. If they don't sign that then they can have recourse towards anyone that uses the photo. Even if you took it.

2) once sold or given to customers who are paying for services which may include you taking their photograph, it is the property of the customer unless you got them to sign a model release form and give you the rights to the image.

This is a little murky. You have not defined what is being sold. You can sell the image outright, thereby transferring ownership rights or you may sell them a print, which does not convey ownership or copyright rights.

Signing a model release has nothing to do with copyright ownership. This merely allows the owner of the copyright to use the image commercially with (or without) an agreed compensation.

1) the dive shop owns the photos not you (this is normal with most, some even make you sign something)

Again, it is a little murky as to whether you must sign away the rights. It depends on the situation, which is why some make you sign something. If you are hired to photograph a location as part of the survey crew, then the photos will likely be deemed the property of the employer. If you fill tanks for a dive op and then go diving with a camera, it is unlikely the dive op can claim ownership of the photos.

If you want to try to persue the issue further, I suggest you contact the magazines directly. They have the deeper pockets and tend to take such issues seriously.

If they pay you for a job that is very different than if you are selling stock images where you can charge for each use (but are usually not paid for your efforts to make the images).

If you are going to give it away for people's personal use, you can:A) Make sure the images are smaller, 600 pixels wide or so jpg files. Most publications want 300 dpi so that means someone putting it in a magazine or big poster is out of luck unless they want to print it at a postage stamp size.B) Batch process the images in Photoshop and put your name on them. Yeah it can be removed but due to the hassel most people won't. If they want the big version w/o your name on it they know who to come to.

If this was in Europe you could become rich from this, especially if you adapted an "typical american" policy of suing to claim your rights. Here, in Europe that is, it doesn't matter who you work for: the copyright is still yours, unless you specifically sign it away. And whoever publishes a picture like they did yours, is effectivly a a thief and can be prosecuted. Well, that is Europe... You may learn more about US rules from American photographer Rick Rickman, check out the third section "(3/5) Rick Rickman, a freelance photographer, talks about the REAL meaning of the word "Copyrighted":

In the UK your copyright is enshrined in law under the Copyright Designs & Patent Act 1988 until 75 years after your death.
You cannot assign copyright in perpetuity, only the usage and the time frame is an important part of that.
I used to be a professional photographer and I can tell you that the reason I can now devote my life to going diving is because I have always believe in vigorously defending these rights. When one of my photographs is used without my permission or assignment I rub my hands with glee because I know I am in a very good negotiating position.
It is amazing what people try to get away with (through ignorance usually). As the editor of the Sunday Telegraph once asked me, You are not really going to sue us are you? Nobody ever sues us. To which I replied See you in court! I have never lost one yet.
Do not be afraid to protect what is yours. However, with digital imaging I believe it is always best to file the RAW files - just in case you need proof! It is best to go into court with something more than a sad story.

I buy my own photographic kit. Diving equipment manufacturers and diving services suppliers get even-handed treatment from me whether they choose to advertise in the publications I write for or not. All the equipment I get on loan is returned as soon as it is finished with.Did you know you can now get Diver Mag as an iPad/Android app?

This sucks, but it's hard to battle. I am in a somewhat similar situation. And I am dancing on eggshells. My Catalina Island dive book is sold largely on Catalina Island and I need them to sustain sales. Prior to the book being published, I sent a sheet of slides to "a key person" at Catalina to help select the pics that best suited their operation at Two Harbors. He never responded and quit the job. three years later my pictures show up in the island's visitor's guide, and they are in it to this day....8 years later. If I squack, am I ruining a delicate situation? Probably because the island governmental infrastructure is so tight that gaining acceptance is fu*^&% hard. I "got in" because of some contacts. In reality, I could sue the pants off of them because I do have the originals. I am in a damned if I do damned if I don't situation.

I feel your pain bro.

Joe

Joe BelangerAuthor, Catalina Island - All you Need to Knowwww.californiaunderwater.comwww.visitingcatalina.com

Background (Spring 05): I've been shooting raptor images at a falconry center here in Vancouver. I'm their "Official Photographer", so in exchange for unfettered access they get some images at no charge. Anyways, one of the trainers had a falling out with the center's management and left to do his own thing. The trainer contacted me to ask for some images to show some prospective clients, one being a "wildlife park". I use this term loosely as this is a really scuzzy facility. Anyways, with an email detailing that only the trainer is allowed to use the images for his own display purposes to to specifically tell the "park" not to use the images, I sent him a shot of a Harris Hawk in flight, note, all my postings have my signature on the lower right corner of each image.

Anyways, this past September, while looking for some shooting opportunities, I browsed over to the park's website, and what did I see? The very same image BUT with my signature cropped out and no credit whatsover!

I immediately sent them a rather strongly worded email and invoice. Given that my signature was cropped out, I felt this was instant bad faith and intent. Anyways, to make a long story short, the park claimed innocence and refused to pay...they didn't take down the image either.

It took 4 days and dilligent searching to find out who the ISP was of the site and it wasn't until the ISP threatened to pull the entire site down was the image removed.

I had a lawyer friend send a collection letter that was ignored. I then took the case to Small Claims court. A Notice of Claim was served to both the place of business and registered office (different locations) that was ignored. I was able to file for a Default Judgment and was at the hearing yesterday. I was awarded the full invoiced amount plus court fees. I now await the letter from the court to serve to the park. If they don't pay within a reasonable amount of time of service (about 2 weeks) I can ask for a payment hearing and if they ignore this, they can be held in contempt and either jailed or will have a lien placed on their property.

So, the moral of the story: Keep track of your images, and if you do see the image being used in a commercial manner, pursue it to the fullest extent of the law.

While you seem to be making some progress, and keeping in mind that IANAL...

My understanding is that you did not have a prior contract with this place, so how can you invoice them?

What they did do, though, is infringe your copyright. Copyright laws are Federal, and the small claims court is the wrong place to be chasing it. Assuming, of course, that you have registered the images with the Library of Congress, in which case you have them very much over a barrel. If the images are not registered with the LOC they can use a "innocent infringement" defence, which will reduce damages. If your images are registered, you can force them to settle under the Federal copyright laws for 3x standard rate for usage, plus punitive damages.

I register EVERYTHING with the LOC every six months. It costs $35.00 and a morning of work...

I am not in the US, I'm in Canada. By the Canadian Copyright act, the "Work" is automatically copyrighted upon creation and that owner of said copyright has the right to pursue compensation against those who violate it. Besides, I didn't send them an invoice for usage, I sent them an invoice for the copyright violation.

By the Canadian Copyright act, the "Work" is automatically copyrighted upon creation and that owner of said copyright has the right to pursue compensation against those who violate it.

And the same thing applies in the US, viz copyright exists at the moment of creation and there is a right to pursue compensation. The two issues I was wanting to point out (which I'll now say is for the benefit of the US readers ) are that, in the US, copyright infringement is a federal offence, and that the potential compensation for copyright infringement is reduced if the intellectual property has not been registered with the Copyright Office. That is not to say that you can't win a case with non-registered images, but the burden of proof is on the party infringed against in this situation, where registration of the images puts the burden back on the infringing party.

Burden of proof is easy, the offending party in my case would not have been able come up with the original file (they used an 800x600 crop). I have the original large fine JPG. Plus, as they didn't have permission to use the image, they don't have anything in written form to show they had permission.

I believe it's a Federal offence here as well, however, one learns to pick one's fights and "maximize" where one could collect. The park isn't exactly a Six Flags or Disney, and thus had limited capabilities of payment. B)

Let's say that the settlement (if and when collected) will make a nice dent into getting a new 5D.